Can an employer commence a redundancy process whilst staff are on furlough?
The employer must have a valid ground for redundancy e.g. that unfortunately, the business will close, or can identify a clear reduction in work to be undertaken by employees. If there is a genuine risk of redundancy, the Company could commence consultation whilst staff are furloughed.
The employer must review how many staff are at risk of redundancy, how many work at each Company site and whether the Company operates in a unionised environment. In any case, the current pandemic, and furloughed staff, will not automatically absolve the Company of the requirements to consult about the possibility of redundancy.
The Company will have collective consultation obligations if it is proposing to make redundant at least 20 employees at one establishment within 90 days. This will greatly impact the timing of a consultation exercise and an employer should seek advice on the question of whether the Company’s sites each constitute an establishment.
The current pandemic, furloughed staff, or employees working from home, will not dilute these collective consultation obligations. In fact, absent employees or remote working will make effective consultation more difficult to achieve. The employer ought to be aware that with collective consultation, the primary obligation is to consult with representatives of the affected employees. Therefore, if there is a recognised union, the employer should consult with the Union representatives. In the absence of a union, the Company may consult with existing employee representatives, or in their absence, should offer affected employees the right to elect employee representatives with whom it can then undertake the consultation exercise.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.